CHAUHAN, J. - (1.) THE Petitioner is aggrieved by the order dated 24.6.2009, passed by the Judicial Magistrate, First Class, Sambher Lake, District jaipur whereby the learned Magistrate has framed the charges against the petitioner for offences under Sections 354, 452, 341, 323/34 IPC. The petitioner is also aggrieved by the order dated 1.2.2010 passed by the Additional District and Sessions Judge, Sambher Lake, whereby the learned Judge has upheld the order dated 24.6.2009 and has dismissed the petitioner's revision petition.
(2.) BRIEFLY the facts of the case are that on 13.12.2004, the respondent No. 2, Mrs. Anju Sharma lodged a report at Police Station Renwal, wherein she claimed that on 12.12.2004, around 2:00 pm while she was sitting in her room, Lalchand entered her room and started using filthy language towards her. When she protested, he outraged her modesty by ripping her clothes. She raised a hue and cry whereupon her family members rushed to her rescue. But before her family members could do anything, Lalchand's family members, namely Mukesh, Prabhati Lal, Prabhati Lal s/o Bhura Mal, Madan Lal s/o Bhura Mal Bagad, Suresh s/o Madan Lal entered the room and assaulted the complaninant's family members. She claimed that her husband, her elder brother-in-law, Nand Kishore, her mother-in-law, Mrs. Gita Devi, her elder sister-in-law, Mrs. Asha Devi were hurt. On the basis of this report, the police chalked out a formal FIR, FIR No. 177/04 for offences under 143, 452, 341, 323, 354/34 IPC. After a thorough investigation, the police submitted a chargesheet for offences under Sections 323, 341, 354, 452/34 IPC. However, when the learned Magistrate took cognizance of the offence, he took cognizance of offences only under Sections 323, 341, 452/34 IPC. The learned Magistrate did not take any cognizance for offence under Section 354 IPC. But subsequently, when the case was listed for framing of the charges, on 24.6.2009, the learned Magistrate suddenly took cognizance of the offence under section 354 IPC. Vide order dated 24.6.2009, the learned Magistrate also framed the charges for offences under Sections 354, 452, 341, 323/34 IPC. Since the petitioner was aggrieved by the said order, he filed a revision petition before the learned Judge. But vide order dated 1.2.2010, the learned Judge upheld the order dated 24.6.2009. Hence, this petition before this court. Mr. Ramesh Chand, the learned counsel for the petitioner has vehemently argued that once the learned Magistrate had taken the cognizance for certain offences, and had not taken the cognizance for offence under Section 354 IPC, he could not have reviewed his earlier cognizance order. For, the power to review does not exist under the Criminal Procedure Code. In order to buttress this contention, the learned counsel has relied upon the case of Adalat Prasad vs. Rooplal Jindal & Ors. (2004) 7 SCC 328). Secondly, the learned Magistrate could not have taken the cognizance and could not have framed the charges without giving any opportunity to the petitioner to argue against the proposed charge. Since an adverse order was being passed, an opportunity of hearing should have been given to the petitioner. Thirdly, the learned Judge has erred in ignoring the fact that the learned Magistrate has reviewed his earlier order of cognizance. Thus, the learned Magistrate had exercised a power not vested in him.
(3.) ON the other hand, Mr. Sharad Joshi, the learned counsel for the complainant, has strenuously argued that inadvertently, the learned Magistrate had forgotten to take the cognizance for offence under Section 354 IPC when he had passed the order of cognizance. Secondly, the statement of the prosecutrix is sufficient for the offence of Section 354 IPC to be made out. Therefore, the learned Magistrate had merely corrected a mistake made by him. Hence, the learned Magistrate did not review his earlier order. Thirdly, the act of taking cognizance later on was at worst an irregularity committed by the learned Magistrate. Fourthly, according to the impugned order both the prosecution and the petitioner were heard before the charges were framed. Thus, the petitioner cannot claim that he was denied an opportunity of hearing. Hence, the learned counsel has supported the impugned order.;